Exhibit 10.3
THIRD AMENDMENT AGREEMENT
THIS THIRD AMENDMENT AGREEMENT (this "Amendment") is entered into as of
December 30, 2005, by and between New Century Energy Corp., a Colorado
corporation ("NCEC"), and Laurus Master Fund, Ltd. ("Laurus").
BACKGROUND
NCEC and Laurus are parties to (a) a Securities Purchase Agreement dated as
of June 30, 2005 (as amended, restated, supplemented or otherwise modified from
time to time, the "June 2005 SPA") and (b) a Securities Purchase Agreement dated
as of September 19, 2005 (as amended, restated, supplemented or otherwise
modified from time to time, the "September 2005 SPA" together with the June 2005
SPA, each a "Purchase Agreement" and collectively, the "Purchase Agreements")
pursuant to which Laurus provides NCEC with certain financial accommodations.
In connection with the June 2005 SPA, (a) NCEC executed a Secured
Convertible Term Note dated as of June 30, 2005 in favor of Laurus in the
original principal amount of $15,000,000 (the "Note") and (b) NCEC and Laurus
are parties to a Registration Rights Agreement dated as of June 30, 2005 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Registration Rights Agreement") pursuant to which NCEC, among other things, has
agreed to file a registration statement covering the Registrable Securities (as
therein defined).
NCEC and Laurus have agreed to amend the Note and the Registration Rights
Agreement, and NCEC and Laurus are willing to do so on the terms and conditions
hereafter set forth.
NOW, THEREFORE, in consideration of the agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendments to Registration Rights Agreement. Subject to satisfaction of
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the conditions precedent set forth in Section 3 below, the following defined
terms set forth in Section 1 of the Registration Rights Agreement are hereby
amended in their entirety to provide as follows:
"December Option" means the Option dated December 30, 2005 issued
by the Company to the Holder pursuant to the Third Amendment Agreement
dated as of December 30, 2005 by and between the Holder and the
Company and consented and agreed to by Century Resources, Inc., a
Delaware corporation.
"Effectiveness Date" means (i) with respect to the initial
Registration Statement required to be filed hereunder, a date no later
than July 1, 2006 and (ii) with respect to each additional
Registration Statement required to be filed hereunder, a date no later
than one hundred twenty (120) days following the applicable Filing
Date.
"Filing Date" means, with respect to (i) the indebtedness
evidenced by the Note, a date no later than thirty (30) days following
the date hereof, (ii) the shares of Common Stock issuable upon
exercise of the Warrant, a date no later than thirty (30) days after
the date hereof, (iii) the shares of Common Stock issuable upon
exercise of the June Option, a date no later than thirty (30) days
after the date hereof, (iv) the shares of Common Stock issuable upon
exercise of the December Option, a date no later than the earlier of
ten (10) business days after the date on which the Company files its
Report on Form 10-KSB for the fiscal year ended December 31, 2005 or
April 25, 2006, and (v) the shares of Common Stock issuable to the
Holder as a result of adjustments to the Fixed Conversion Price made
pursuant to Section 3.6 of the Note, Section 4 of the Warrant, Section
4 of the Options or otherwise, thirty (30) days after the occurrence
of such event or the date of the adjustment of the Fixed Conversion
Price.
"June Option" means the Option dated June 30, 2005 issued by the
Company to the Holder pursuant to the Securities Purchase Agreement.
" Options" means, collectively, the June Option, the December
Option and each other Common Stock purchase option issued by the
Company to the Holder from time to time.
2. December Option. In consideration of Laurus' agreement to amend the Note
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and the Registration Rights Agreement in accordance with the terms hereof, NCEC
shall issue to Laurus an Option to purchase up to 5,061,392 shares of NCEC's
Common Stock (subject to adjustment as set forth therein).
3. Conditions of Effectiveness. This Amendment shall become effective upon
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satisfaction of the following conditions precedent: Laurus shall have received,
in form and substance satisfactory to Laurus and its counsel, (i) a copy of this
Amendment executed by NCEC and consented and agreed to by Century Resources,
Inc., a Delaware corporation ("Century Resources" together with NCEC, each a
"Company" and collectively, the "Companies"), (ii) the Amended and Restated
Secured Convertible Term Note in the original principal amount of $15,000,000,
duly executed and delivered by NCEC, (iii) an Option dated the date hereof to
purchase up to 5,061,392 shares of NCEC's Common Stock (subject to adjustment as
set forth therein), duly executed and delivered by NCEC and (iv) all such other
certificates, instruments, documents, agreements and opinions of counsel as may
be required by Laurus or its counsel.
4. Representations and Warranties. Each Company hereby represents and
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warrants as follows:
(a) This Amendment, the Purchase Agreements and the Registration
Rights Agreement, as amended hereby, constitute legal, valid and binding
obligations of the Companies party thereto and are enforceable against such
Companies in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, NCEC hereby reaffirms
all covenants, representations and warranties made in each Purchase
Agreement, the Related Agreements (as therein defined) and the Registration
Rights Agreement, as applicable, to the extent the same are not amended
hereby and agree that all such covenants, representations and warranties
shall be deemed to have been remade as of the effective date of this
Amendment.
(c) No event of default has occurred and is continuing or would exist
under any document, instrument or agreement by and between any Company and
Laurus after giving effect to this Amendment.
(d) No Company has any defense, counterclaim or offset with respect to
any Purchase Agreement, the Registration Rights Agreement or any other
Related Agreement (as defined in each Purchase Agreement).
5. Effect on the Registration Rights Agreement.
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(a) Upon the effectiveness of Section 1 hereof, each reference in the
Registration Rights Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall mean and be a reference to the
Registration Rights Agreement, as applicable, as amended hereby.
(b) Except as specifically amended herein, each Purchase Agreement,
the Registration Rights Agreement, the other Related Agreements (as defined
in each Purchase Agreement) and all other documents, instruments and
agreements executed and/or delivered in connection therewith, shall remain
in full force and effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of Laurus, nor
constitute a waiver of any provision of any Purchase Agreement, the
Registration Rights Agreement, any Related Agreement (as defined in each
Purchase Agreement) or any other documents, instruments or agreements
executed and/or delivered under or in connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
7. Headings. Section headings in this Amendment are included herein for
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convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8. Counterparts; Facsimile. This Amendment may be executed by the parties
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hereto in one or more counterparts, each of which shall be deemed an original
and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
[Signature Pages to Follow]
IN WITNESS WHEREOF, this Amendment Agreement has been duly executed as of the
day and year first written above.
NEW CENTURY ENERGY CORP.
By: /s/ Xxxxxx X. XxXxxxxxx
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Name: Xxxxxx X. XxXxxxxxx
Title: President and CEO
LAURUS MASTER FUND, LTD.
By: /s/ Xxxxx Grin
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Name: Xxxxx Grin
Title: Director
CONSENTED AND AGREED TO:
CENTURY RESOURCES, INC.
By: /s/ Xxxxxx X. XxXxxxxxx
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Name: Xxxxxx X. XxXxxxxxx
Title: President
